*After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this appeal. SeeFed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case therefore is ordered submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 29 2001 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL J. CERNOBYL, Defendant-Appellant. No. 00-7033

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 99-CR-49-B)

Submitted on the briefs: * D. Michael Littlefield, Assistant United States Att orney and Sheldon J. Sperling, United States Attorney, Muskogee, Oklahoma, for Pla intiff-Appellee. Donn F. Baker, Tahlequah, Oklahoma, for Defendant-Appellant.

Before SEYMOUR, EBEL and BRISCOE , Circuit Judges.

EBEL , Circuit Judge.- 2 -

Defendant-Appellant Michael J. Cernobyl (“Cernobyl” ) pled guilty to possession of marijuana with intent to distribute i n violation of 21 U.S.C. § 841(a)(1). The district court calculated his sentence on the basis of marijuana found in his home and car, as well as on the basis of his own admission that he had transported large amounts of marijuana over an extended period of time. Cernobyl appealed. His initial argument to the cou rt centered on his contention that the evidence relied upon by the district courtwas unreliable. Following the Supreme Court’s opinion in Apprendi v. New Jersey , 120 S.Ct. 2348 (2000), Cernobyl successfully moved for supplemental briefi ng on the issue of whether his sentence was unlawful in light of Apprendi . In his supplemental brief, Cernobyl argued that 21 U.S.C. § 841 is facially un constitutional in light of Apprendi , and, in the alternative, that the district court erred in basing his sentence on drug quantities that were not alleged i n his indictment and proved beyond a reasonable doubt. We hold that § 841 is n ot facially unconstitutional, but that the district court’s sentence constituted plain error in light of Apprendi , and we therefore VACATE Cernobyl’s sentence and REMAND for resentencing.
I. BACKGROUND Cernobyl was arrested in January 1999 after Oklahom a State Trooper Mike Smith (“Trooper Smith”) stopped a car in which Cern obyl was traveling as a passenger. Trooper Smith detected the odor of unbu rned marijuana in the vehicle,- 3 -

and then sought and obtained permission to search the car from the driver, Merle Thomason (“Thomason”). Trooper Smith discovered si xty-six pounds of marijuana in the trunk and arrested Thomason, Cerno byl, and another passenger. Cernobyl later admitted to Trooper Smith that the m arijuana belonged to him. Cernobyl went on to inform Trooper Smith that he wa s “unlucky” because he arrested Cernobyl with an unusually small amount of marijuana, and that Cernobyl transported between 100 and 400 pounds of marijuana on a bi-weekly or monthly basis. Although he was only twenty-eight y ears old at the time of his arrest, Cernobyl told Trooper Smith he had been eng aged in drug trafficking for seventeen to twenty years. Cernobyl subsequently t old two agents of the United States Drug Enforcement Agency (“DEA”) that he earn ed approximately $11,000 to $15,000 per month in this manner, and that he ha d been transporting drugs for approximately three years. Cernobyl later recanted these statements, however, telling the probation officer who prepared his pre- sentencing report that he was merely “bragging” to impress Trooper Smith and the DEA agents. The DEA agents who interviewed Cernobyl obtained a search warrant for his residence to look for additional evidence of il legal drug activity. The search uncovered approximately thirty-eight pounds of mari juana hidden in Cernobyl’s garage and $11,000 in cash concealed beneath a bath room sink.- 4 -

The Government indicted Cernobyl on two counts of p ossession of marijuana stemming from the seizures of drugs from his home and from Thomason’s vehicle in violation of 21 U.S.C. § 841( a)(1). The indictment did not allege any specific amount of marijuana believed to have been in Cernobyl’s possession. Cernobyl raised Fourth Amendment objec tions to the search of his home, and the district court suppressed all of the evidence derived from that search for purposes of trial. Cernobyl then pled g uilty to the first count of the indictment charging him with possession with intentto distribute the marijuana found in Thomason’s car. Because of a perceived lack of corroborating eviden ce to support Cernobyl’s admissions of prior drug trafficking, th e pre-sentencing report prepared by the U.S. probation officer recommended that Cernobyl be sentenced only on the basis of the sixty-six pounds of mariju ana found in Thomason’s truck. The Government objected, arguing the district courtshould consider the suppressed drugs along with Cernobyl’s statements t o Trooper Smith and the DEA agents as relevant conduct for sentencing under Sec tion 1B1.3(a)(1)(A) of the Federal Sentencing Guidelines. After conducting a sentencing hearing, the district court determined that Cernobyl’s guilty pl ea, together with the government’s evidence of relevant conduct, warrante d a base sentencing level of thirty-two. Specifically, the court sentenced Cern obyl on the basis of the court’s- 5 -

conclusion to a preponderance of the evidence that Cernobyl had possessed 3,701 pounds or 1678.77 kilograms of marijuana, including : (1) the sixty-six pounds found in Thomason’s vehicle; (2) thirty-five pounds seized from his residence; and (3) the judge’s finding that Cernobyl transport ed 100 pounds of marijuana per month for a period of three years, which was based on Cernobyl’s own boasts to Trooper Smith and the DEA agents. Cernobyl filed timely notice of appeal. In his ope ning brief, Cernobyl argued that the district court should not have base d his sentence on his own allegedly unreliable admissions to police o r on the drugs that were seized from his home in violation of the Fourth Amendment. A short time before Cernobyl filed his brief, the Supreme Court decidedApprendi v. New Jersey , 120 S.Ct. 2348 (2000), and we ordered supplemental brie fing to determine whether his sentence was unlawful in light of that decision. C ernobyl now argues that Apprendi rendered 21 U.S.C. § 841 facially unconstitutional , and, in the alternative, that the district court erred in sente ncing him for possessing 3,701 pounds of marijuana without a jury’s conclusion that the evidence proved that he possessed this amount beyond a reasonable doubt.
II. STANDARD OF REVIEW Because the Supreme Court’s opinion in Apprendi was not issued until after Cernobyl filed notice of appeal, he did not raise e ither of these challenges before- 6 -

the district court. We therefore review these issu es for plain error. See United States v. Hishaw , 235 F.3d 565, 574 (10th Cir. 2000). As such, “[r ]eversal is only warranted if there is: (1) an error; (2) that is pl ain or obvious; (3) affects substantial rights; and [4] ‘seriously affect[s] th e fairness, integrity[,] or public reputation of judicial proceedings.’” Id. (quoting United States v. Olano , 507 U.S. 725, 732 (1993)).
III. DISCUSSION A. Constitutionality of 21 U.S.C. § 841 Cernobyl first argues that Apprendi rendered 21 U.S.C. § 841 facially unconstitutional. In Apprendi , the Supreme Court held that “[o]ther than the fac t of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to ajury, and proved beyond a reasonable doubt.” 120 S.Ct. at 2362-63. Congress structured § 841 in two parts, with § 841(a) defining the prohibited behavior, and§ 841(b) setting forth a range of penalties based on the quantities of drugs invol ved in the offense. Federal courts have historically construed the provisions o f § 841(a) as the substantive elements of the offense, and the provisions of § 84 1(b) as sentencing factors which could be submitted to a district court for a finding to a preponderance of the evidence. See United States v. Jones , 235 F.3d 1231, 1234 (10th Cir. 2000). In light of Apprendi , however, we recently concluded that “the quantityof drugs- 7 -

involved in a violation of § 841 is an essential el ement of the offense if that fact exposes the defendant to a heightened maximum sente nce under § 841(b)(1)(A) or (B).” Jones , 235 F.3d at 1236. Thus, in order to increase a d efendant’s sentence for a conviction pursuant to § 841, drug quantities must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt. See id. ; United States v. Heckard , 238 F.3d 1222, 1234-35 (10th Cir. 2001); United S tates v. Keeling , 235 F.3d 533, 538 (10th Cir. 2000); Hishaw , 235 F.3d at 575. Cernobyl nevertheless argues that, to be consistentwith our pre-Apprendi case law and the plain language of § 841, we must p reserve the historical procedural dichotomy between §§ 841(a) and 841(b), find that § 841(b) violates Apprendi , and therefore hold that the statute as a whole is facially unconstitutional. We note that the Fourth, Fifth, and Eleventh Circuits have considered this question and concluded that § 841 r emains constitutionally viable, albeit with relatively little substantive analysis of the question. See United States v. Candelario , 240 F.3d 1300, 1311 n.16 (11th Cir. 2001), cert. denied__ S.Ct. __, No. 00-9956, 2001 WL 539656 (June 18, 2001); Un ited States v. Slaughter , 238 F.3d 580, 582 (5th Cir. 2000) (“We see nothing in the Supreme Court decision in Apprendi which would permit us to conclude that 21 U.S.C. § § 841(a) and (b) . . . are unconstitutional on their face.”) , cert. denied , 121 S.Ct. 2015 (2001); United States v. Strachan , Nos. 99-4119, 99-4426, 2001 WL 208470, at- 8 -

*5 n.* (4th Cir. Mar. 2, 2001) (unpublished). We n ow join these courts in holding that § 841 remains constitutionally enforceable notwithstanding Apprendi

. At the heart of Cernobyl’s argument is an assumptio n that we are bound by our pre-Apprendi holdings that drug quantity determinations under § 841(b)(1) are to be submitted to a judge for finding by a prepond erance of the evidence. Whatever force those cases may have had in the past , we are now bound by the Supreme Court’s interpretation of the Due Process C lause in Apprendi itself. Apprendi compels us to submit to a jury questions of fact that may increase a defendant’s exposure to penalties, regardless of wh ether that fact is labeled an element or a sentencing factor. See 120 S.Ct. at 2365-66. Thus, to the extent that Cernobyl relies on earlier cases holding that factu al findings under § 841(b)(1) can be submitted to the district court under a prep onderance of the evidence standard, his argument fails. See Jones , 235 F.3d at 1237 (“Apprendi strips [cases removing drug quantity determinations from ajury pursuant to § 841(b)] of their precedential value.”). Conceding for the purposes of argument that Apprend i requires drug quantities be proved beyond a reasonable doubt unde r § 841(b)(1), Cernobyl contends in the alternative that our holding in Jon es treads impermissibly on the legislative powers of Congress by judicially rewrit ing the statute. Apprendi , however, does not hold that legislatures can no lon ger have separate statutory- 9 -

provisions governing a substantive offense and sent encing factors, as is the case in § 841. It merely recognizes that the Due Proces s Clause entitles criminal defendants to certain procedural protections, regar dless of whether a statutory provision is styled as a substantive offense or a s entencing factor. See Apprendi , 120 S.Ct. at 1265-66. Moreover, application of Apprendi to § 841 is consistent with the plain language of the statute. Section 841(b) itself is silent on the question of what procedures courts are to use in implementing its pr ovisions, and therefore the rule in Apprendi in no way conflicts with the explicit terms of the statute. To the contrary, our original interpretation of § 841 appl ied similar procedures for findings of fact under §§ 841(a) and (b). See Jones , 235 F.3d at 1237 (citing United States v. Crockett , 812 F.2d 626, 628-29 (10th Cir. 1987) (holding th at drug quantities must be charged in an indictment to justify a sentence enhancement under § 841(b)(1))). The practice of a llowing judges to sentence offenders on the basis of drug quantities that were neither charged in an indictment nor submitted to a jury arose only later , after the implementation of the Federal Sentencing Guidelines. See Jones , 235 F.3d at 1237 (citing United States
v. Ware , 897 F.2d 1538, 1542-43 (10th Cir. 1990)).- 10 -

In sum, we find no inconsistency between Apprendi and § 841 that would compel a conclusion that the statute as written is unconstitutional, and we proceed to consider whether the district court erred in app lying the statute. B. Sentencing Error The Government concedes that the district court pla inly erred in its application of § 841(b) in light of Apprendi . The Government’s indictment of Cernobyl did not charge him with possessing any spe cific quantity of marijuana, and his plea agreement, while not in the record, ap parently did not admit to possessing any specific quantity. Rather, the district court based its sentence on a finding to a preponderance of the evidence that Cernobyl possessed sixty-six p ounds of marijuana in the car that was stopped by Trooper Smith and thirty-five p ounds of marijuana in his home. In addition, the district court held that Ce rnobyl’s admissions of long-term drug trafficking carried sufficient indicia of reli ability to justify a finding that he had transported 100 pounds of marijuana per month f or a period of three years. Based on these calculations, the district court hel d that the appropriate offense level under the Federal Sentencing Guidelines was thirty-two. Taking into account a criminal history category of I and a two- level sentence reduction for acceptance of responsibility, the district court imposed a sentence of eighty-seven1 Even after Apprendi , district courts are empowered to make findings to a

preponderance of the evidence in order to determine an appropriate offense level under the Sentencing Guidelines. See Heckard , 238 F.3d at 1235-36. Cf. Apprendi , 120 S.Ct. at 2361 n.13 (sentencing factors still may be submitted to a court under a preponderance standard, in “cases that do not involve the imposition of a sentence more severe than the statutory maximu m for the offense established by the jury’s verdict”); Hishaw , 235 F.3d at 577 (“In our view, as long as the defendant’s sentence falls within the maximum estab lished by statute, Apprendi (continued...) - 11 - months, which was at the low end of the Sentencing Guidelines range of eightyseven to 108 months. Section 841(b)(1)(D) sets forth a maximum sentence of five years, or sixty months, for persons convicted of possessing fewer than fifty kilograms of marijuana. See § 841(b)(1)(D) (“In the case of less than 50 kilog rams of marihuana . . . such person shall . . . be sentence d to a term of imprisonment of not more than 5 years . . . .”). Because Cernobyl was neither indicted nor convicted of possessing more than fifty kilograms o f marijuana, § 841(b)(1)(D) defines his maximum sentence exposure. See United States v. Norby , 225 F.3d 1053, 1059 (9th Cir. 2000) (“[U]nder Apprendi , the ‘prescribed statutory maximum’ for a single conviction under § 841 for anundetermined amount of marijuana is five years.”). The district court’s s entence of eighty-seven month’s imprisonment exceeded this maximum sentence by twenty-seven months, and the sentence thus constituted an obvious error, satisfy ing the first two elements of the plain error standard. 1 For the same reason, we hold the error seriously affected1 (...continued)

does not foreclose consideration of drug quantities beyond the offense of conviction.”). In Cernobyl’s case, however, the di strict court’s consideration of uncharged quantities of marijuana elevated his sent ence beyond the maximum allowed under the statute, and therefore falls afou l of Apprendi

. - 12 - Cernobyl’s substantial rights. Finally, the fairne ss and integrity of the proceedings are in doubt. Cernobyl was not indicte d with possession of marijuana on the basis of his admission of long-term drug dea ling to Trooper Smith and the DEA agents, and the Government was never required t o submit its evidence of such dealing to a fact finder for proof beyond a re asonable doubt. Furthermore, given that Cernobyl later retracted his admissions, the sole evidence supporting a sentence enhancement on this basis is now in disput e. Thus, this is not a case where we can avoid reversing Cernobyl’s sentence be cause the evidence is overwhelming or uncontroverted. Cf. Keeling , 235 F.3d at 539-40. Accordingly, we hold the district court’s sentence constitutes p lain error. Nevertheless, we do not believe the evidence relied upon by the d istrict court was so lacking in minimum indicia of reliabil ity as to be incapable of supporting the court’s findings to a preponderance of the evidence. Cf. United States v. Ryan , 236 F.3d 1268, 1273 (10th Cir. 2001) (“When drug quantity is at issue, the government has the burden of proving the quantity of drugs for sentencing purposes by a preponderance of the evide nce, and the evidence relied upon must have a minimum indicia of reliability.” ( citations and quotations- 13 -

omitted)). We review a district court’s factual fi ndings in this context for clear error, reversing “only if the district court’s find ing was without factual support in the record or we are left with the definite and firm conviction that a mistake has been made.” Id. In this case, the district court’s findings were ba sed primarily on Cernobyl’s own admission that he had transported a minimum of 100 pounds of marijuana per month for a period of three years. A lthough the $11,000 in cash and the marijuana found in Cernobyl’s home were sup pressed by the district court, the court was nevertheless entitled to consi der them as evidence of relevant conduct for sentencing purposes. Cf. id. at 1272 (a district court is entitled to consider evidence seized in violation of the Fourth Amendment during sentencing proceedings unless there is evidence the violation was committed with the intent to secure an increased sentence.) Furth er, at Cernobyl’s sentencing hearing a witness testified that Cernobyl had suppl ied him with marijuana in quantities ranging from a quarter pound to thirty p ounds for a period of several months. Thus, we reject Cernobyl’s contention that the district court’s findings of relevant conduct were unsupported on the record, an d we remand only because the district court’s sentence exceeded the statutory maximum of 60 months and thereby violated Apprendi

.- 14 - IV. CONCLUSION Because the district court plainly erred imposing asentence beyond the 60- month maximum allowed by 21 U.S.C. § 841(b)(1)(D), we VACATE Cernobyl’s sentence and REMAND the case to the district court for re-sentencing in accordance with this opinion.